Federal Legal Corner: Light at the End of the Tunnel for Whistleblowers?

With stories of government wrongdoing increasingly occupying the headlines, legislators in both major political parties are scrambling to enact reforms – perhaps to demonstrate that they take seriously the job of cleaning up our budding culture of political corruption. A cornerstone of these proposed reforms includes a revamping of the system in place to protect federal employees who blow the whistle on government misconduct. As any government whistleblower knows, such reforms are long overdue.

Seventeen years ago this month, the first President Bush signed into law the Whistleblower Protection Act of 1989, which Congress voted to strengthen in 1994. This legislation was designed to reduce impediments to whistleblowers and other victims of prohibited personnel practices seeking redress. As anyone knows who has sought relief for reprisal based on protected activities, by almost any measure, the WPA, even as amended, has failed to facilitate readily-attainable relief for whistleblowers. For example, under the 1994 amendments, the Federal Circuit has exclusive jurisdiction to hear whistleblower appeals, after such appeals have gone before the Merit Systems Protection Board (MSPB). Yet, the Government Accountability Project (a whistleblower-friendly non-profit organization) recently observed that the Federal Circuit has built a 1-119 track record against whistleblowers. And these are the only the appeals that have made it as far as the Federal Circuit – most whistleblower cases die in infancy, since the administrative process at the Office of Special Counsel and MSPB smothers all but the most persistent and resourceful whistleblowers.

Before 2006’s mid-term elections, it now appears likely that one or more of the following reforms may be approved by the House and Senate – and the White House would be hard-pressed to veto ethics measures shortly before November:

allowing whistleblowers the right to a jury trial and appeals before all federal appeals courts – This would be the single-most significant possible reform, since the anti-employee MSPB and Federal Circuit monopolies over government whistleblower hearings and appeals have prevented whistleblowers from getting relevant and necessary discovery, calling key witnesses, and being heard by a sympathetic ear. The jury trial provision, in HR-1317, which unanimously cleared the House Government Reform Committee on April 6, 2006, is patterned on the jury trial provision for corporate workers in the 2002 Sarbanes/Oxley law (designed to curb shady accounting practices, after the Enron scandal).

overturning hostile Federal Circuit case law which has developed – S-494 would eliminate many barriers as to what whistleblowers must demonstrate regarding government misconduct in order to qualify for protection — for example, doing away with the unattainable “irrefragable proof” standard currently in effect.

clarifying and expanding WPA protections – for example, preventing retaliatory investigations against whistleblowers, legalizing classified whistleblower disclosures to members of Congress, and giving the MSPB authority to determine if a security clearance was revoked or suspended in retaliation.

extending whistleblower protections to the FBI and other intelligence agencies – HR-5112 and S-2285, with bi-partisan sponsorship, would guarantee these protections, including access to jury trials (in the House version).

giving whistleblowers the right to seek punitive damages – HR-4925 would be an extremely effective deterrent to whistleblower reprisal, by hitting wrongdoers where it counts.

The passage of this legislation will encourage federal employees to expose government wrongdoing – and will change the current state of affairs, which all-too-often punishes workers for taking courageous steps to improve our government for all Americans.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are also the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we’ve reduced the price to only $29.95 plus s&h. To order your copy, go to http://www.fedweek.com/pub/index.php.